Madras High Court
A.R.R.M.V. Arunachellam Chetti And ... vs Venkata Chelapathi Guru Swamigal on 10 August, 1914
JUDGMENT John Wallis, Officiating, C.J.
1. These are cross appeals from the decrees of the Subordinate judge of Madura in two suits, Original Suits Nos. 50 and 51 of 1906, in one of which the plaintiff, who styles himself the malathipathi, and is described by his opponents as the Gurukkal or priest of the Patharakudi Mutt, seeks to recover possession of two villages belonging to the mutt from the defendant in possession, while in the other, Original Suit No. 51 of 1906, he seeks for a declaration of his right to the possession and management of the mutt properties against the defendants, who are Nattukottai Chetties and deny the plaintiff's right to the management and enjoyment of the endowment. Their case is that the charity has been under the management of their predecessors as hereditary trustees or hakdars, that the right of management from time immemorial had been in the Chetties, who had entrusted the actual management to eight families, who again left the routine management to the senior members of these families, who served in rotation two each year. The Subordinate Judge has held that the defendants have failed to show that the actual management was vested in these families as alleged in the plaint and has held that the plaintiff's predecessors were entitled to the management and enjoyment of the suit properties, but that the Chetti community have acquired by prescription a joint right of management with the plaintiff on trust for the objects of the charity and as to any surplus income on trust for the plaintiff. These findings are not in accordance with the case of either party and both have appealed against it.
2. While I am not prepared to say that a community, such as the Nattukottai Chetties, could not acquire such a right of joint management by prescription against the holders of the plaintiff's office, on a careful consideration of the evidence, I have come to the conclusion that they have failed to prove it, and that the plaintiff's appeal in this respect must be allowed and on the other hand the defendants' cross-appeal against the decree must be dismissed.
3. The Subordinate Judge has found on the documentary evidence that the suit villages were granted to the plaintiff's predecessors and were managed and enjoyed by them for a lengthy period subject to the trusts of the endowment, and there are no substantial grounds for questioning that finding. The accounts of the beginning of the last century, which have been produced in evidence and about the authenticity of which there is no question, show this conclusively. In these accounts there is no mention of the Chetties at all, except that in certain documents of 1809 the head of the mutt is styled Nagara Gurukhal. This apparently means Gurukkal of the Nagara Chetties. The Gurukkal of this mutt has apparently always been the Guru of the Chetties who may possibly have obtained this endowment for him, but this does not show that the suit villages were under their management. Among the documents filed for the plaintiff are registered mahzars, Exhibit W, etc., executed at the request of the then holder to attest his title to and enjoyment of the suit villages on the ground that the title-deeds had been destroyed by fire. Exhibits P series show that the villages were classified in the Board of Revenue accounts as perpetual endowments granted to defray the charges of the Patharakudi Gurukkal. There is absolutely nothing to support the defendants' case until we come to Exhibits XXXIX and XXXIX (a) and XXXIX (b) of the year 1832. Exhibits XXXIX and XXXIX (a) are petitions addressed by the zemindar of Sivaganga, in whose zemindari the villages are situated, and by the Nattukottai Chetties respectively to the Collector of Madura, praying that certain officers who had been appointed apparently under Regulation VII of 1817 to inquire into the affairs of certain religious institutions and call for accounts should be withdrawn, as the endowments in question had been created for and were in the management of the Nattukottai Chetties who had been in the habit of paying the Government quit-rent on them. Among the institutions mentioned is the "Patharakudi Matam, which is the gurustanam of the said Chetties," that is, the seat of their religious teacher. A statement of this sort, made behind the back of the Guru with a view of inducing the public authorities to abstain from interference with the management of the endowment, is not entitled to any weight as evidence that the Chetties were exercising any right of management adverse to the Gurukkal. No doubt as stated in these documents and proved in evidence, they wore supplementing the income derived from the endowments and coming to his assistance as their religious superior, but such action cannot properly be construed as adverse to him. Exhibits A and Al are receipts for payments in connection with the institution and purport to be made on behalf of the Gurukk 1. Nor is there anything in Exhibits-D series, which are receipts for the poruppu or quit-rent payable by the institution, to suggest they were not made on behalf of the Gurukkal, though it may well be that, as stated in Exhibits XXXIX and XXXIX (a), it was the Chetties who paid the quit-rent.
4. We come next to the proceedings of the Inam Commissioner in 1864. The Gurukkal had died in 1863, and there was a vacancy in the office until 1867. In the Inam, Register the Gurukkal is entered as the original grantee. The earlier accounts, which have been exhibited in this case, are among the documents referred to as evidence of this. The object of the institution is said to be the efficient maintenance of the matam presided over by the priest of the Nattukottai Chetties, including the feeding of Brahmins, worship of the Swami, and maintenance of the dignity of the priest or Guru. It is further stated that the Chetties who are very rich spend large sums on these objects. The priest had died fifteen months before, and the Chetties were contemplating electing a new one. "It appears that when the priest was alive some of the principal Chetties, whose names are given in column 16, were managing the affairs of the matam and of the villages attached to it. The managers or trustees are elected by the Chetti community itself." This column 16 is headed "Particulars regarding present owner" and under the sub-heading "Name and age" eight Chetties are entered in the column as "Patharakudi Matam Trustees". The inam title-deeds were made out to the "Manager for the time being of the Patharakudi Mutt," and Exhibit R and Exhibits XXXII series show that they were handed over to the aforesaid Chetties. There was no Gurukkal at the time, and not much weight can be attached to the assertion of the Chetties made behind is back that they were entitled to the management, especially in view of the fact that the election of the trustees by the Chetti community as alleged by them has not been proved. It is not even alleged in the written statement, where the case set up is that the general management had been delegated to eight families the heads of which discharged it two a time in rotation. This the defendants have also failed to prove, and all that is shown is that the management has in recent times been left largely in the hands of individual Chetties who are not shown to have been appointed in any particular way.
5. In this state of the evidence I agree entirely with the finding of the Subordinate Judge that the defendants have failed to show that they had acquired the right of management when the present plaintiff, then a boy, was appointed as Gurukkal in 1867. The next question is, have they acquired it since. The vacancy in the office is alleged by the plaintiff to have been due to the fact that the last holder had failed to nominate a successor. Be this as it may, about 1867 the plaintiff, then a mere boy, was appointed to the office, though the authenticity of Exhibit XXX, the agreement with his father alleged by the Chetties, is not proved and it cannot be acted on. Certain Chetties as appears from the inam documents were in management during the vacancy, and having regard to the youth and inexperience of the plaintiff, it was only natural that they should continue in management after his appointment. Nor would there be anything unnatural if the plaintiff left the management in their hands when he grew older, considering the relations between them, as he was their religious priest and teacher and they accepted his ministrations and generously supported the institution. As already stated, the Subordinate Judge has found, and the evidence bears him out, that after the plaintiff's appointment the management was left very largely in the hands of individual Chetties, who are not shown to have been appointed in any particular way, but are treated by him as representing the Chetti caste as a whole, and he has came to the conclusion that through them, the caste acquired by prescription against the plaintiff the right of managing the endowment, though as the plaintiff was not altogether excluded he finds that the right of management acquired by the caste was not exclusive of the plaintiff, and that the plaintiff is entitled to manage jointly with the caste. It is not easy to imagine what sort of joint management there could he by the Guru and the whole Chetti caste, but it is not necessary to go into this, as in my opinion the large part in the management taken by Certain influential and energetic Chetties is not shown to have been adverse to the plaintiff. It is not enough to show that the plaintiff knew of the large part in the management taken by individual Chetties, it must be shown clearly that it was adverse to him; and this, in my opinion, should be very clearly made out where the relation between the parties was that of religious teacher and adherents, and for some time after the plaintiff's succession the facts proved admit of the interpretation that they were acting as de facto guardians of the minor. In view of the intimate and confidential relations of the parties, the Courts, I think, should require adverse possession to the knowledge of the plaintiff to be very clearly made out, and I think that in this respect the defendants have failed to discharge the burden which lies upon them.
6. The Subordinate Judge has relied on the fact that the Chetties with the surplus funds of the endowments and funds raised by themselves erected a new agraharm, or set of residences for Brahmins and a new matam which he finds was intended for a lodging house for the Chetties. He also finds that the plaintiff concurred and acquiesced in what they did and took part in the opening ceremony of the new buildings. He also finds that the houses in the agraharm or Brahmins' quarters were let out to the kinsmen of the plaintiff at a nominal rent of 2 annas, and that they executed rent-deeds in favour of eight Chetties who are described as hukdars of the mutt and acting on its behalf. This is perhaps the strongest piece of evidence relied on for the plaintiff. It relates merely to buildings which had been erected at the cost of the Chetties and were let at a nominal rent to the plaintiffs relations. It is not perhaps surprising that the plaintiff should have refrained from raising any objection to the terms if he was acquainted with them, but it would be too much in my opinion to infer that he recognized their adverse rights of managing the whole institution. It is very significant that the defendants cannot show that, prior to the present litigation, pittas and muchilikas in respect of the village lands were exchanged between the hukdars and the ryots. That would indeed have been a very significant fact in support of their claim. It was, however, the conduct of the Chetties in getting such agreements from the ryot's in 1890, Exhibits II and III, that led to the present litigation. The facts that the payment of poruppu and local cess was left to them and that notices in respect of these matters, styled pattas in the judgment, were sent to them by the Collector, Exhibits XXXV series and XXXVI series, only show that they took these liabilities on their own shoulders. The cadjan document's referred to in paragraph 34 of the Subordinate Judge's judgment are, as he points out in paragraph 33, open to considerable suspicion. Though they show that the general management and expenditure was left in the hands of the Chetties, they do not, as the Subordinate Judge points out, show that they ever exercised any control over the plaintiff's expenditure, or failed to honour his orders to pay. In these circumstances it is not easy to see how the acts can be considered adverse.
7. The Subordinate Judge has come to the conclusion that the acts of the Chetties must be considered to have been done on behalf of the, caste as a whole and adversely to the plaintiff's right of exclusive management. The evidence appears to me to lend itself as readily to the view that the acts done by these individual Chetties were done on behalf of the plaintiff. The Subordinate Judge has not taken the view contended for by either side, but has come to the conclusion that the Chetties acquired a right of managing jointly with the plaintiff. I do not say such a right of joint management could not be acquired, but I should certainly expect evidence of incidents of joint management and it cannot be based upon the ground that, though the Chetties actually managed, there is no evidence that the plaintiff was excluded from the management. I find no evidence of such joint management or of the manner in which it was to be enjoyed. The Subordinate Judge relies on Exhibit XXXIII (a), a suit as to the ownership of certain lands in one of the suit villages, in which the Gurukkal was impleaded as the 8th defendant, but did not appear. Defendants Nos. 2, 4, 6 and 9 pleaded that the Gurukkal and certain other Chetties including the 9th defendant were trustees, and the 7th issue dealt with this, but the judgment as to this issue merely says: "There is some evidence that the 9th defendant and a few others looked after the affairs of the matam." An unproved allegation made by the 9th and other defendants in a suit in which the Gurukkal did not enter appearance is, in my opinion, quite worthless as evidence of joint management, though some evidence that the management of the Chetties was not adverse to him. I think the choice is between holding that plaintiff never lost his right of management and holding that the caste acquired it. As I have already said, having regard to the nature of the relation existing between the plaintiff and the caste, I am not prepared to make any presumption in favour of the defendants, but think that they should prove their case clearly and that it is not open to them to make out their title by relying on acts of an ambiguous nature. The Chetties cannot be allowed to press their assistance on their religious head and then on the strength of that assistance turn round and say they have ousted him from the management of his institution by adverse possession. The weakness of the case as to the Chetties' management appears further from the finding of the Subordinate Judge that, though the caste is entitled to joint management with the plaintiff, they are only entitled to manage in trust for the plaintiff, whom he finds to be the sole beneficiary during his lifetime of the entire income of the villages subject only to the maintenance of the institution, i.e., "maintenance of poojah and of himself according to his dignity and the feeding of Brahmins as appurtenant to the institution according to the usage and scale of the institution" (paragraph 66). The fact thus found by the Subordinate Judge makes it exceedingly unlikely that the Chetties should have acquired a mere right of management for the benefit of the plaintiff. What they claimed was full control over the endowment and its funds. Both parties have appealed from the judgment in each suit. The appeals by the Chetties, Appeals Nos. 31 and 33 of 1909, are dismissed with costs. The plaintiff's appeals, Appeals Nos. 65 and 66 of 1909, are allowed with costs throughout and the decree in Original Suit No. 51 of 1906 will be modified by declaring that the plaintiff is solely entitled to possession. In Original Suit No. 50 of 1906 the plaintiff is entitled to a decree for possession. As to mesne profits I concur with the judgment of my learned brother.
Kumaraswami Sastri, J.
8. These appeals relate to the villages attached to the Patharakudi Mutt in the Madura District. The appellant, Venkatachelapathi Guruswamigal, filed Original Suit No 51 of 1906 for a declaration that he as the head of the mutt was entitled to the possession of the village of Patharakudi and to receive the income from the Receiver, and Original Suit No. 50 of 1906 for a declaration of his right and for possession of the villages of Varivayal with its hamlets and Nagavayal and mesne profits. The plaintiff's case is that he is the head of the Patharakudi Mutt, that the villages in question were granted to the then head of the mutt by the Pandiyan Kings in the 16th century, that the defendants were managing the properties with his permission, that, as they were trying to assert exclusive title, he terminated their power of management, that, in consequence of disputes between the parties, the village of Patharakudi was ordered to be attached by the Head Assistant Magistrate of Hamnad until the rights of the parties were adjudged in a Civil Court, that the lease of Varivayal and its hamlets, and Nagavayal by the Chetties in favour of the defendants in Original Suit No. 50 of 1906 is not valid and was not authorised by him and that he is consequently entitled to the possession of the villages. The defendants deny that there was any such mutt known as the Patharakudi Mutt, of which the plaintiff was the head, and state that the Chetti community founded the charity at Patharakudi, the objects of which were to provide for the worship of the god Palampathy Nathar, the maintenance of the priest and the feeding of poor Brahmins, and that the plaintiff was only a person appointed by them to minister to their spiritual wants, that he was receiving an allowance from the Chetti community and that, beyond receiving the allowance, he had no rights to the properties. The defendants claim to be the trustees of the plaint charity and entitled to possession as such trustees. The Subordinate Judge held that the plaintiff was the head of the Patharakudi Mutt, that the villages claimed were part of the endowments of the mutt, that some of the Chetties, as representing the Chetti community, assumed possession and management of the villages and were managing the properties and utilising the income for purposes of the mutt and the maintenance of the plaintiff and that the plaintiff acquiesced in the management of the Chetties from the time they assumed the management. He was further of opinion that the management of the Chetties was not in pursuance of any adverse right, that the defendants had no right as managers or trustees in their own right, either by virtue of the original constitution or of any special custom or valid scheme for management, to the possession of the property and to the enjoyment of the income and that the plaintiff was neither a servant nor an officer under their orders. He held that the Chetti community as a whole had the right of management and was entitled to the possession of the villages and to administer them as such managers and that the plaintiffs right was only to the surplus income as the sole beneficiary and to an account of the income of the properties from the Chetties. In the result he passed a decree declaring that the plaintiff, as Gurukkal and head of the Patharakudi Mutt, was entitled to joint trusteeship and management with the Yelayathakudi Nagara Chetties, that he was entitled as Gurukkal to the entire beneficial enjoyment of the income during his lifetime and continuance in office as such and that he was not entitled to sole possession as claimed by him. Both parties appeal against the decree, the plaintiff contending that he ought to have been granted a decree for possession and the defendants contending that the plaintiff was a mere servant of the Chetties and was not entitled to any of the declarations made by the Subordinate Judge.
9. The main questions arising for determination in these appeals are:
(1) Whether there was an institution called Patharakudi Mutt to which the villages claimed in the plaint by the plaintiff were granted as endowments;
(2) Whether the plaintiff is the head of the mutt or is a mere servant of the defendants; and (3) Whether the defendants have acquired any and what interest in the management of the trust, assuming that the first two points are found in the plaintiff's favour.
10. The case for the plaintiff is that the mutt was endowed by Soundara Pandyan Raja, one of the Pandyan Kings, who ruled in the 16th century and who granted the villages of Patharakudi, Nagavayal, Varivayal and Kulamangalam for the support of the mutt. There can be little doubt from the documentary evidence that such a grant was made. Exhibit W, dated 5th August 1809, is a mahzarnamah by Subramania Gurukkal, the then head of the mutt, to the elderly persons of the village. It recites that Patharakudi village was in the enjoyment of the Gurukkal and his ancestors for a long time, that the documents were destroyed by fire and that he desired to have an entry made in the register to that effect. It requests the elders to bear witness to the truth of these allegations and it is attested by certain elders in token of its truth. Exhibits W1, W2 and W3 are similar applications in respect of other villages attached to the mutt and they were registered by proper authorities. On 31st December 1814, it appears from Exhibits P, P1, P2 and P3, which are extracts from the register of maniams forwarded to the Board of Revenue on the 3rd January 1815, that the villages were classified as perpetual endowments granted to defray the charges of Patharakudi Gurukkal. Exhibit K, which is an extract from the istimrari account showing the income for the year 1801-1802, refers to the Brahmin feeding of the Patharakudi Mutt and the villages of Patharakudi and Nagavayal Exhibit. L, which is dated 4th November 181(sic), refers to the "Patharakudi Tiruppunavasl, Mudanmayar, Madapuram Athinam" (Tiruppunavasal Mudanmayar being admittedly the title assumed by the Gurukkals). Exhibit M, which is an account produced from the records of the Collector of Madura for the year 1803 04, refers to the "Patharakudi Gurukkal's village" and Exhibit N, which is an extract from an account in the Collector's record refers to the village which is described as 'Madappiram Patharakudi" and gives the boundaries of the village. Exhibit O is an extract from the istimrar cadjan account in the Collector's office for the year 1800 01 (but wrongly printed as 1860-61 in the record). It refers to maniams and swathanthrams in the villages attached to the Sivaganga Zemindari and among the maniams are mentioned (1) "Tiruppunavasal Mundanmayar" Manyam. In 1863 the Inam Commissioner held an enquiry and Exhibits XXXI and XXXI (a) are extracts from the main register. In dealing with the villages of Patharakudi, Nagavayal, Variyanendal Surakudi, etc., attached to the mutt, the description of the inam is given as granted for the support of the matam in Patharakudi village." It also describes the grant as permanent' and as having been made by Soundara Pandyan Raja. Exhibits O and BB are referred to as documents showing the nature of the grant and the name of the original grantee is given as Patharakudi Matam Subrammania Gurukkal." The history of the matam, is given and in dealing with the object of the grant the extract sates as follows: "It appears by the tradition that the object of the grant is to keep the matam, which is presided by the Priest of Yelayathakudi Nattukottai Chetties, efficiently by feeding Brahmins in a chathran situated close to the matam, by worshipping the Swami in Palampathi Nathar Koil situated close to the matam, and by maintaining the dignity of the priest or guru." It refers to the affairs of the matam being managed by some Chetties and gives the names of eight managers or trustees who were looking after its affairs at the time. At the time of the enquiry, there was no head of the mutt as the previous Gurukkal had died about 16 months before and nobody had been appointed in his place. There can be little doubt from Exhibit XXXI that the institution, to which the charities were attached, was a mutt presided over by a matathipathi Exhibit R is the inam title-deed, dated 3rd June 18(sic) 4, and it is granted to the manager for the time being of the Patharakudi Matam. Exhibits B, B1 and C, Cl are extracts from the register showing the result of the enquiries made in respect of maniams in the Sivaganga Zemindari, Mudura District, for Fasli 1223, and filed before the Inam Deputy Collector. They refer to the maniams as having been in the enjoyment of the Gurukkals and to Thiruppunavasal Madanmayar Nagari Subramania Gurukkal as being in possession at that date. The inam is described as having been given to the Madapuram or mutt and Subramania Gurukkal is said to be in the enjoyment of the villages paying poruppu to the zemindar.
11. Both the plaintiff and defendants admit that the villages were granted by the Pandiyan Kings. The case of the plaintiff is that it was granted to the head of the mutt for the purpose of the upkeep of the mutt, while the case for the defendants is that it was really granted to the Chetties of Yelayathakudi but that the grant was in the name of the spiritual head owing to the fact that grants were not made to Sudras. There is nothing to show that the grant was made to anybody except the Gurukkal and the documents referred to above make it clear that it was always treated as a grant to the Gurukkal and his successors in office and not to the Nattukottai Chetties. So far as at least Southern India is concerned, grants have been made by kings to Sudras [vide the history of mutts given in Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran 10 M.375] and there is no reason why the grant should not have been made to the Chetties if, as a matter of fact, they were the persons to whom the Pandiyan King wanted to give the property. The contention that the grant was really to the Chetties and not to the head of the mutt does not seem to have been made at any time before the suit, but, on the contrary, the documents I have referred to and the Inam Commissioner's Report referred to above show that the Chetties in 1863 admitted that the grant was to Subramania Grurukkal and that the original grantee was Subramania Grurukkal. If the grant was really to the Chetties they would certainly have said so. There can be little doubt on this part of the case that the Patharakudi Mutt is an institution existing from the 16th century and that the grant of the lands now claimed was to the then head of the mutt and his successors. In Exhibits P, P1 and P2 under the heading "Hereditary or during the natural life of the incumbent" the statement is made, that it was a perpetual endowment, and in Exhibit R, the inam title-deed, the grant is made to the person in management of the Patharakudi Mutt and his successors. Exhibits BBI and CCI also refer to the grant as hereditary and, so far as the records go, the grant has always been treated as a grant to the Gurukkal and his successors. I have no hesitation in holding that the decision of the Subordinate Judge, to the effect that the plaint-mentioned institution was an ancient religious mutt presided over by a Brahmin who was also the spiritual head of the Chetties and that it was not merely a trust founded by the Chetties (the Gurukkal being only their servant with no interest in the mutt properties), is correct. The grant was a grant to the Gurukkal for the time being and vested in him and his successors the ownership of the properties, subject, of course, to the performance of the trusts which as head of the mutt they had to perform. From the 16th century there is no reference in any of the documents to the grant having been made to the Chetties or to their having any rights of ownership in the villages granted.
12. The head "of the mutt has, therefore, prima facie the right to possession unless it can be shown that he has either parted with his rights or that adverse rights have been acquired by third parties.
13. Turning to the question of the position of the plaintiff, I see no reason to differ from the Subordinate Judge that he is the present head of the Patharakudi Mutt. The contention of the defendants that he is a mere servant removable at pleasure is unsupported by any documentary evidence, and no instance has been cited where the head of the mutt has been removed by the Chetties. The idea of treating their spiritual preceptor as a paid servant is so repugnant to the ideas, customs and manners of the Hindus that it would require very strong evidence before the contention of the defendants can be accepted. The series of documents, which I have referred to above, treat the Gurukkal as the head of the mutt and the property as, descending to his successors. There can be little doubt that the head of the mutt for the time being was also the spiritual preceptor of the Nattukottai Chetties and very probably the importance of the mutt was due to the fact that its head was a guru of a rich and influential section of the Hindu community who liberally aided the mutt with funds. As regards the appointment of the head of the mutt (sic) plaintiff's case is that the heads of and are appointed by the preceding head mentin the absence of such an appoint raku by the Brahmin inhabitants of the Patha-sub-di village, who belong to the Veeliasta division of Brahmins. The defendants Nate that the whole body of the Yelayathakudi Nattukottai Chetties have been appointing married men as Gurukkals or priests. It is clear from the documents, which I have already referred to, that the person, who, for the time being, occupied the position of Patharakudi Gurukkal, was treated as the person to whom the inams were granted. The evidence as to how the Gurukkal was appointed is not very clear. The usual practice in muttsis for the matathipathi or the head of the mutt for the time being to appoint his successor and there is no reason to suppose that in this mutt this practice was departed from. The difficulty, however, arises where the head of the mutt died without naming his successor. The plaintiff states that it was the Brahmin inhabitants of Patharakudi that had appointed him, while the Chetties state that he was appointed by them. The facts that the seven immediate predecessors of the plaintiff were members of the family of the plaintiff residing at Patharakudi and that Exhibits BBI and CCI refer to the members of the family of the guru, and that annual payments from the mutt are made to the Veelia Brahmin families at Patharakudi, lend strong force to the contention that the selection of the guru was not at the will and pleasure of the Chetties but that the Veelia Brahmin inhabitants of Patharakudi had a voice in the selection. The probabilities are that the appointment was made by both of them in co-operation, the Brahmins selecting a suitable person and the Chetty community or its most influential men approving of the choice and requesting the Brahmins to do the needful in the matter of preparing the selected candidate for the office. It is, however, unnecessary to discuss the point in detail, as in the present case it is not disputed that the plaintiff is the Patharakudi Gurukkal for the time being, whether he was appointed by the Chetties or whether he was appointed by the mahajanas of the Patharakudi village. The evidence in the case shows beyond dispute-that the plaintiff was appointed Gurukkal on the 25th Chitrai Prabhava (6th May 1867). It is not suggested that from that date up to the date of suit any other person was the guru of the mutt or was receiving the emoluments appertaining to the office. If there was any defect in the appointment of the plaintiff, that has been made good by his enjoyment of the office from 1857.
14. The real dispute in the case is not so much as to the plaintiff's right to the office, but to the right of the Gurukkal for the time being to the possession and enjoyment of the properties of the mutt. The extreme contention of the defendants that the plaintiff was their mere servant has been very properly rejected by the Subordinate Judge. There is no evidence worth the name to show that at the time of his appointment there was any curtailment of his rights and privileges as head of the mutt, nor is there any reason to suppose that the plaintiff's position was in any way different from that of his predecessors. I have no hesitation in agreeing with the Subordinate Judge that Exhibit XXX is a document whose genuineness is open to great doubt and that it cannot be acted upon. It is proved by the evidence that the institution referred to in the plaint was a mutt with a head or matathipathi, that the villages claimed in the plaint were granted to the head of the mutt for the time being and vested in his successors and that the plaintiff is the present head of the mutt. The Subordinate Judge, having found these facts in favour of the plaintiff, was of opinion that he had lost the right to the sole, management and possession, because some Chetties were in management in their own right before the plaintiff's appointment and continued to be so afterwards and that consequently the plaintiff has lost the exclusive title to the management of the properties. In dealing with the question of adverse possession, it has to be borne in mind that the plaintiff and his predecessors-in-title were the gurus or the spiritual preceptors of the Chetties and that, so far as appears from the record, the relations between them were harmonious till five or six years before the suit. In 1901, the Chetties tiled Original Suit. No. 59 of 1910 against certain tenants, alleging that the plaintiffs were trustees and in enjoyment of the lands by letting out the same to tenants. The defendants pleaded that the properties belonged to the Gurukkal and not to the plaintiffs and the plaintiffs withdrew the suit. Instead of filing a suit the Chetties instituted criminal proceedings against the Gurukkal, which were dismissed. They then took proceedings under Chapter XII of the Criminal Procedure Code, the upshot of which was that the Gurukkal was declared to be in possession of the mutt and the Chetties were enjoined not to disturb his possession. As regards the villages, Patharakudi was put in the possession of the Receiver, and the Gurukkal was ordered not to interfere with the possession of the lessees of the other villages. The Chetties did not file any suit to establish their title to the mutt but, on the other hand, the Gurukkal filed these suits to establish his title. There is very little evidence to show that the Chetties at any time asserted a title adverse to the guru and there is no evidence on record to show that the head of the mutt for the time being was treated as a servant of the Chetties removable at pleasure. The Chetty community (consisting, as it did, of rich and influential persons) was interested in the affairs of the mutt and there is nothing improbable in the plaintiff having allowed them to continue to manage the immoveable properties of the mutt, as they were managing the properties during the period between the death of the preceding guru and the plaintiff, who succeeded him as a young man (about 18 years old). There is no reason in the present case to presume that the management of the Chetties was adverse to that of the guru.
15. There can be little doubt that some Chetti disciples were managing the properties of the mutt in 1864, the date of the inam statement, Exhibit XXXI. There is nothing to show that from the 16th century, the date of the grant of the villages, up to 1832 the Chetties were in possession, or management of the properties of the mutt. The first document in which any reference is made to trustees is Exhibit XXXI, which came into existence at a time when there was no matathipathi and the Chetties were in possession. The earliest document, which shows that the Chetties were interesting themselves in the temple properties, is Exhibit XXXIX, dated 30th April 1832. In that year there seems to have been some interference with temple affairs by the Government Officials who demanded accounts and the zemindar of Sivaganga, in whose zemindari the mutt and the villages were situate, sent Exhibit XXXIX to the Collector. It refers to several temples, etc., and recites that Patharakudi Mutt was a Gurusthanam of Yelathakudi Chetties who settled in the zemindari, that the Chetties had the management of the temple, matam, etc., and paid moneys for the expenses of the pooja and prayed for orders that the maniyams and others newly appointed by the amildar may be recalled. The Chetties of Yelayathakudi town sent a similar petition, Exhibit XXXIX (a), and the Collector passed an order directing that the villages mentioned in the order belonging to the Nagara Chetties should be left in their possession only, without maniyams and others being appointed thereto, and that only poruppu should be collected. Among the properties is mentioned "Patharakudi Matam which, is said to be the Gurusthanam of the Chetties." There is no reference in these exhibits to a Gurukkal then being alive and it is difficult to determine at such a distance of time if the Chetties acted without reference to the then Gurukkal, if there was one, and took the rather unusual course of asserting their independence and title. It is quite possible that as in 1864, there was then no head of the mutt in existence, or, if there was one, he did not interfere and left it to the general body of worshippers or disciples to move in the matter. We find from Exhibit DD, dated the 25th August 1840, (wrongly printed as 1900) that in 1840 the head of the mutt was managing the mutt properties and taking agreements in his name and the absence of any document between 1832 and 1863 showing that the Chetties exercised any acts of interference over the mutt properties is significant. I agree with the Subordinate Judge in holding that those documents do not show that the Cheties were trustees or managers of the institution. The next documents, in which the names of the Chetties appear, are the inam statements, Exhibits XXXI and XXXI (a). It is admitted that, at the time of these statements, the Gurukkal for the time being was dead about 15 months before the inam statements were given, that no guru was appointed at the time of these statements and that the plaintiff's appointment was four or five years afterwards. Under these circumstances it is difficult to see how these statements, which are presumably made by the Chetties, can be taken as conclusive against the head of the mutt where the statements are against the interests of the mutt. The statements made by the Chetties, however, show that their management cannot be said to be hostile to the head of the mutt. It is alleged that the object of the grant was to keep the matam, which is presided by the priest of Yelayathakuddi Nattukottai Chetties, efficiently, by feeding Brahmins in a chathram situated close to the matam, by worshipping the Swami in Palampathi Nadhar Koil situated close to the matam and to maintain the dignity of the priest or guru." It recites that the priest of the matam died 15 months before and that the Chetties are contemplating the election of a new priest and goes on to state that, when the priest was alive, some of the principal Chetties, whose names are given in column 16, were managing the affairs of the matam and of the villages attached to it and that the managers or trustees are elected by the Chetti community. It then goes on to state that the grant was an hereditary grant, that it was in uninterrupted possession of its holders since the date of the grant and that the persons mentioned in it were then the trustees and were managing its affairs. Under the heading Name of original grantee" the name of Patharakudi Subramania Grurukkal is mentioned. The plaintiff, who was appointed a few years subsequently, was a young man of about 18 or 19 years of age and the management of the properties continued to be in the hands of the Chetties. There is, however, no evidence that the Chetties assumed a position of hostility to the plaintiff, till 1901. On the contrary, we find that in Exhibit Ql, an account, dated 11th November 1899 submitted for Fasli 1309, of the income of the villages, Madathipathi Venkatachala Gurukkal, i.e., the plaintiff is mentioned in the column describing the villages presumably as the person entitled to the villages.
16. The case for the defendants, as set out in their written statements, is that the whole body of Chetties had been exclusively managing the villages, that, owing to difficulty and inconvenience of the whole body of Chetties taking part in the management, eight families, representing eight of the nine broad divisions into which the Chetti community is divided, were entrusted with the management, that it has been the immemorial custom for the senior members, for the time being, of the eight families to undertake the management of routine matters by rotation two for each year, except in matters calling for the co-operation and conjoint action of all the trustees and that the trustees were managing in their own rights as representatives of the community. The Subordinate Judge finds that the evidence on record does not bear out the defendants' case of a trusteeship being vested in eight families nor does it show any scheme or rules for the management of the institution by the Chetties. This finding of the Subordinate Judge is amply borne out by the evidence. Not only is there no reference to any trustee in documents prior to [Exhibit XXXI (a)] 1864, but there is no proof of any election of trustees to fill up vacancies that occurred since. The Subordinate Judge, however, is of opinion that some Chetties, as the representatives of the Nagara Chetties, interested in the institution as its disciples, assumed possession of its endowments when the plaintiff's predecessor died, put forward to the Inam Deputy Collector their claims as their hukdars and trustees elected and chosen by the Nagarathars to their possession and management of the same and were so recognised, that two or more amongst them continued to be the managers and hukdars on the strength of such claims without reference to the plaintiff's orders or requests to them to manage, collected the produce and the income of the institution, distributed and appropriated them for the maintenance of the mutt and of the plaintiff and that the plaintiff acquiesced in the management of the Chetties from the moment he assumed the headship of the mutt, never questioned their claims but received from the Chetties whatever was required. He also finds that the evidence does not show that the right of the person who was the head of the mutt before 1863 was curtailed or limited by any agreement between the plaintiff and the Chetties and that the plaintiff was not excluded from the management. He also held that it was not shown that the Chetties who were managing the endowments from 1863 professed to exercise any right adverse to the rights and privileges of the plaintiff as the head of the mutt. He was, however, of opinion that the fact that the Chetties were in management without any permission from the plaintiff but in the professed rights of trustees, amounted to a discontinuance of the plaintiff's exclusive possession within the meaning of Article 142 of the Limitation Act and that the plaintiff, who would have been the sole manager, became only entitled to joint management with the Chetties. He consequently passed a decree declaring that the plaintiff as the Gurukkal and head of the Patharakudi institution was a trustee and manager of the same conjointly with the Yelayathakudi Nagara Chetties. The Subordinate Judge in his judgment (paragraph 60) finds that the plaintiff has been living in a portion of the mutt, and has been in receipt of the income for his maintenance, pooja and other expenses, that he was recognised by the Chetties as one of the trustees in 1880 and as matathipathi (or head of the mutt) in 1899 and that all this was not due to the permission of the Chetties but to his own right as guru or head of the institution. He also finds that the plaintiff "was not excluded from such management, though he did not in fact interfere with the Chetties' management and did not express his wish to have a hand in it." He thinks that these facts would not prevent the acquisition of prescriptive title by the Chetties to manage. I find it difficult to follow the Subordinate Judge in his reasoning that the whole body of the Yolayathakudi Chetties acquired by (sic) right to the joint management with the plaintiff. The evidence shows that the mutt is of the usual type, such as the Udipi and Dharmapuram Mutts in Southern India, presided over by the head or matathipathi or Gurukkal who was entitled to the endowed properties, that the villages in question belonged to the mutt and vested in the plaintiff and that, till disputes arose before the suit, the properties were always treated as the properties of the mutt. From the 16th century up to 1864, the date of the inam enquiry, we find no reference anywhere to any trustees, and the evidence after 1863 does not show that there was any legally "constituted body of trustees. It is argued by Mr. Srinivasa Aiyangar that it should be presumed from the fact that the trustees are mentioned in Exhibit XXXI that the original constitution of the mutt provided for trustees and that, according to the rules of the mutt, the management was never in the hands of the Gurukkal but in those of the trustees. This view is inconsistent with the earlier documents which, the Subordinate Judge has rightly observed, "show that the Gurukkals have been the owners, managers and holders of the endowments from the time the institution came into existence and the endowments were granted." There is nothing in the evidence to show that, according to the usage of the mutt, the Gurukkal was merely a figurehead only entitled to receive such sums as the Chetties chose to give him and with no rights either of ownership, management or control. The right of the plaintiff to the possession and management, which is an incident of the right of ownership, can only be defeated by the defendants showing that either they or anybody else acquired any title by adverse possession.
17. It cannot be disputed that the Chetties, who were in management, though calling themselves hukdars or trustees, professed to manage the properties for the benefit of the mutt, which is in this case represented by the plaintiff as the Gurukkal. This is not a case where the property belongs to an idol with a trustee or dharmakartha but a case where the property vests in the guru himself who is the sole beneficiary. The fact that he is bound to apply the income for certain purposes would not affect the question. It has, no doubt, been held that; where property is dedicated to an idol, the office of dharmakartha may be acquired by adverse possession, but where property is given to the head of a mutt and vests in him absolutely subject to the application of the income to certain purposes, the person who manages the property on behalf of the mutt, prima facie manages it also on behalf of the Gurukkal, who is the sole person entitled to the properties. Even assuming that the Chetti community as a whole were managing the properties for the mutt, their management was only a management on behalf of the plaintiff and prima facie the plaintiff has a right to put an end to their management if he chooses to do so. Mere length of time of management on behalf of another would not deprive the owner of the property of his power to put an end to the management and assuming the same himself. In the present case we have to see whether the evidence is such as to support the view that the entire body of the Chetti community acquired as against the plaintiff a right to hold the property in spite of his desire to be in possession. I have already pointed out that the relation between the parties was that of priest and disciples. The plaintiff was a young man who, when he assumed the office, found that the properties were already in the management of the Chetties who had managed the properties between the death of his predecessor-in-office and his appointment. There is nothing improbable in the fact that, being young and inexperienced, he allowed the Chetties to continue to manage the properties and did not take an active part in the management. All that the Subordinate Judge finds is that, in dealing with the income from the properties, the Chetties acted as they chose without consulting the plaintiff. There is nothing on record to show that the plaintiff ever objected to the items of expenditure incurred by the Chetties and that, in spite of his objection, expenses were being incurred. There is, therefore, no reason for supposing that any act of management was done against the wishes of the plaintiff.
18. Great reliance has been placed by the appellants' Vakil on the fact that the accounts show that the Chetties had been collecting the income and making disbursements, and that they were paying the plaintiff whatever they chose and spent the balance at their pleasure. I am not disposed to base complete reliance on the cadjan account produced by the Chetties, as it is clear from Exhibits G and G1 that accounts were being fabricated and written up for the purpose of supporting the claim of the Chetties. It is proved that Exhibits G and Gl were written by Annamalai Chetti, who, the Subordinate Judge says, was admittedly the agent of the defendants, to Ganapathi Aiyar who, the plaintiff deposes, was the person sitting in Court and instructing the defendants' Vakil. No attempt was made by the defendants to show that Exhibits G and Gl are not genuine nor was any objection taken as to their admissibility in evidence. Ganapathi Aiyar, who was in Court, did not choose to deny the genuineness or deny that he received it. The account books, therefore, must be received and considered with caution and implicit reliance cannot be placed on them. The accounts, such as they are, do not show any adverse management; on the contrary, it appears that the fees and emoluments, which were admittedly the sole and absolute property of the plaintiff, were brought into account and that one account was kept of the income of the mutt and the fees and emoluments of the plaintiff. The utmost that can be said is that the Chetties kept the income in their own hands and met the expenditure of the mutt in the manner they thought proper, but there is nothing to show that anything was done against the wishes of the head of the mutt. All that can be said is that the plaintiff left it to some Chetties (who were shrewd men of business) to do what they pleased so long as he was being paid what he wanted. The mere fact that like many persons of his class the plaintiff chose to lead a life of indolence without troubling himself about the management of the mutt properties, which he found in capable hands at the time he succeeded to the office, will not prevent him from resuming management, though he might be bound by the acts of the Chetties during the period of their management. Great reliance has also been placed by Mr. Srinivasa Aiyangar on the fact that the new agraharam and matam were built by the Chetties at great cost, this showing that the Chetties did what they liked with the surplus. In the first place, there is nothing to show that the Gurukkal was opposed to the building of the mutt and the agraharam On the contrary, we find that he took part in the grahapravesam ceremony and was residing in the newly built mutt. I find it difficult to see how it can be said that this fact should be taken against the plaintiff to prove that the management of the Chetties was hostile. Though some reliance seems to have, been placed in the, lower Court on Exhibit V, the Subordinate Judge was not disposed to place much reliance on it and the appellants' Vakil did not contend that Exhibit V estops the plaintiff or was of much value. Documents have been filed to show that the Chetties leased the properties and exercised other acts of management. As pointed out by the Subordinate Judge, the fact that some Chetties called themselves trustees of the matam at a time when they were admittedly managing during an interregnum, would not prove that there were any trustees during the life-time of the previous Gurukkal. The word 'trustees' seems to have been used in a loose sense, as Exhibit XXXI (the Inam Register) refers to some of the principal Chetties managing the affairs of the mutt during the time of the late priest and speaks of "managers or trustees." Exhibits S1 and S2 (inam statements) speak of "vicharanai hukdar" that is, a person entitled to manage, which certainly is not equivalent to the word owner. Exhibits I series refer to the Chetties as hukdars, but the word cannot be used in the sense of their being owners, as it is followed by words showing that they were acting on behalf of the mutt. The word must be taken to mean as vicharanai hukdars, or persons who were rightfully managing the properties. The pattas, Exhibits XXXV (c) and XXXV (d), refer to Nachiappa Chetti as vicharanaidar or manager. No agreements prior to 1900 are filed where, the Chetties call themselves hukdars, and too much weight cannot be attached to the documents as disputes began in 1901. The acts of management referred to by the defendants such as leasing properties, paying taxes, etc., are only incidental to the management of the properties and, unless they assume the management hostilely to the plaintiff, I do not think these documents will advance their case very far. They are consistent with the view that they managed the properties on behalf of the plaintiff and whore a legal origin can be inferred to their possession and management, I see no reason to presume that they acted adversely to the quru. I find it difficult to come to the conclusion that the whole body of Chetties assumed hostile management of the mutt and prescribed it for the possession of the trustees of the mutt and thus acquired the right of management. Even assuming that the whole community, scattered over India, Burma and the Strait Settlements, can acquire the rights by adverse possession, which is a question not free from doubt, I am of opinion that in the present case the evidence adduced on behalf of the defendants falls short of it. They started their case by setting up a specific usage, whereby the trustees were elected by the community and whereby vacancies in the office of trustees were filled by the community. This case has been rightly found against them by the Subordinate Judge and it is difficult to see how the present defendants can claim any right to the properties as trustees. No doubt as defendants they are entitled to show that the plaintiff has lost his right, but in the present case I do not think that they have succeeded in showing that the whole community of Chetties acquired by adverse possession the right to manage the mutt properties and to remain in possession of the same.
19. It follows that the plaintiff is entitled to a declaration that he, as the head of the Patharakudi Mutt, is entitled to the possession of the properties with which the mutt was endowed. So far as Appeals Nos. 31 and 66 of 1909 are concerned I am of opinion that the plaintiff is entitled to the declaration prayed for Appeal No. 31 will be dismissed with costs and Appeal No. 66 allowed with costs throughout.
20. As regards Appeals Nos. 33 and 65 of 1909, the Subordinate Judge finds that the leases set up by the defendant are invalid for want of registration, that, even if they were valid, the terms have expired and that the defendant has no claim under any subsisting lease and is now in possession as a tenant holding over after the expiry of the lease. The plaintiff is, therefore, entitled to possession. As regards mesne profits the Subordinate Judge states that the plaintiff's Vakil conceded that the amount may be taken as the rent admitted by the defendant for the villages of Varivayal and Nagavayal. The defendant in Original Suit No. 50 of 1906, who was examined as defendant's 4th witness, admits that the rent payable by him under the last lease was Rs. 2,660 a year. He states that he paid rent for Fasli 1314 and that Exhibit VIII, dated 14th May 1906, is the hindi. The plaintiff allowed the Chetties to manage the property and did not take an active interest in the management. Having regard to the peculiar circumstances of the case I do not think that the plaintiff is entitled to question payments made by the defendant to the Chetties before suit, especially as they undoubtedly borrowed moneys for the building of the matam and agraharam and had to recoup themselves. It will, of course, be open to the plaintiff to call for an account from the defendants in Original Suit No. 51 of 1906. I am of opinion that the plaintiff is entitled to mesne profits from Fasli 1315 till date of delivery of possession at Rs. 2,660 a year. Appeal No. 33 will be dismissed with costs and Appeal No. 65 allowed with costs and it will be declared that the plaintiff, as the head of the mutt, is entitled to the properties claimed and that the defendant do put the plaintiff in possession of the properties and pay mesne profits at Rs. 2,660 from Fasli 1315 till date of delivery of possession. The appellant in Appeals Nos. 65 and 66 will be entitled to his costs in this and the lower Court.